ORDER ON JOINT MOTION FOR DETERMINATION OF DISCOVERY
DISPUTE REGARDING NUMBER OF DEPOSITIONS [ECF, 96]

HON.
MITCHELL D. DEMBIN UNITED STATES MAGISTRATE JUDGE

Before
the Court is the parties' Joint Motion for Determination
of Discovery Dispute Regarding Number of Depositions filed on
May 8, 2017. (ECF No. 96). The joint motion presents
Plaintiffs' motion for leave of court to take up to 25
depositions in this case. Defendants oppose on the grounds
that Plaintiffs have not exhausted their allotted 10
depositions, have made an insufficient showing of the need to
take additional depositions at this time and that Plaintiffs
have had ample opportunity through the Rule 26(f) process and
several discovery conferences with the Court to raise the
issue with Defendants and with the Court. As discussed below,
the instant motion is DENIED WITHOUT PREJUDICE.

BACKGROUND

On June
8, 2016, Plaintiffs initiated this action by filing a
Complaint against Defendants alleging several causes of
action regarding the in-custody death of Ruben Nunez. (ECF
No. 1). The current operative complaint is the First Amended
Complaint, filed on August 30, 2016, which alleges twelve
causes of action including: (1) Violation of Due Process (42
U.S.C. §1983); (2) Deliberate Indifference to Serious
Medical Needs (42 U.S.C. §1983); (3) Wrongful Death (42
U.S.C. §1983); (4) Right of Association (42 U.S.C.
§1983); (5) Failure to Properly Train (42 U.S.C.
§1983); (6) Failure to Properly Supervise and Discipline
(42 U.S.C. §1983); (7) Failure to Properly Investigate
(42 U.S.C. §1983); (8) Monell (42 U.S.C.
§1983); (9) Wrongful Death (CCP § 377.60); (10)
Negligence; (11) Violation of 42 U.S.C. §12132; and (12)
Violation of 29 U.S.C. §794(a). (ECF No. 15). A motion
to dismiss certain State defendants is pending but the
outcome of that motion does not impact the instant motion.
(See ECF No. 41). On December 12, 2016, Defendants
filed a Third Party Complaint against Correctional Physicians
Medical Group, Inc., (“CPMG”) and certain
individuals, alleging, among other things, that a contract
between the County and CPMG may provide for indemnity. (ECF
No. 43).

LEGAL
STANDARD

Absent
stipulation, a party must obtain leave of court to take a
deposition which would result in more than 10 depositions
being taken by a party. Rule 30(a)(2)(A)(i), Fed.R.Civ.P. A
court must grant such leave to the extent consistent with
Rule 26(b)(1) and (2), Fed.R.Civ.P. Rule 26(b)(1), in
particular, provides:

Parties may obtain discovery regarding any nonprivileged
matter that is relevant to any party's claim or defense
and proportional to the needs of the case, considering the
importance of the issues at stake in the action, the amount
in controversy, the parties' relative access to relevant
information, the parties' resources, the importance of
the discovery in resolving the issues, and whether the burden
or expense of the proposed discovery outweighs its likely
benefit.

Under Rule 26(f), Fed. R. Civ. P., the parties are required
to confer as soon as practicable, and in any event at least
21 days before a scheduling conference is to be held, and
develop a discovery plan. Among other things, the discovery
plan must address changes that should be made in the
limitations on discovery imposed by the federal rules or
local rules. Rule 26(f)(3)(E). In this Court, pursuant to
Chambers rules, the joint discovery plan is required to be
lodged no later than 7 days before the Early Neutral
Evaluation/Case Management Conference. Dembin Chambers Rules
III.A.3.

DISCUSSION

In the
Joint Discovery Plan submitted by the parties to this Court
on September 22, 2016, the parties stated: “Discovery
should be conducted in accordance with the limitations
imposed by the discovery rules of the Federal Rules of Civil
Procedure. There are no changes or limitations on discovery
that are required in this case.” At that time, the
Complaint named seven Defendants including one entity and six
individuals. (ECF No. 1). If Plaintiffs intended to depose
all of the Defendants, only three non-defendant deposition
spots were available. Even at that early stage of this
litigation, it should have been obvious to Plaintiffs that
the 10-deposition limit of the Federal Rules may not be
sufficient to their needs or desires. The issue was not
raised with the Court, nor, apparently, with Defendants.

The
operative First Amended Complaint, filed on August 30, 2016,
added a second entity and two additional individuals. (ECF
No. 15). Deposing each Defendant would reach the 10
deposition limit of Rule 30. A Third-Party Complaint was
filed on December 12, 2016, adding an entity and two
individuals as Third-Party Defendants. (ECF No. 43). On
December 20, 2016, the parties filed a Joint Motion to Amend
the Scheduling Order. (ECF No. 46). No issue was raised by
Plaintiffs regarding the limit on number of depositions. The
Court hosted four telephonic discovery conferences in which
the status of scheduled depositions was discussed because of
the addition of the third-party Defendants and a change in
counsel by a third-party Defendant. The conferences were held
on February 27, March 13, March 20 and April 6, 2017. (ECF
Nos. 70, 76, 79, 91). The number of depositions was not
raised. On April 14, 2017, as discussed in the conference on
April 6, the parties filed a second Joint Motion to Amend the
Scheduling Order. (ECF No. 94). The status of depositions was
one of the subjects of the Joint Motion but, again, the
number of depositions was not raised by Plaintiffs.

In the
Joint Motion, Plaintiffs identify 19 depositions they would
like to take. Nine are Defendants (including two of entities
to be deposed pursuant to Rule 30(b)(6)) and two are
third-party Defendants. The remainder are identified as
percipient witnesses but without explanatory details.
Plaintiffs also seek leave to take up to six more depositions
of unidentified persons. At the time the Joint Motion was
filed, Plaintiffs had not taken a single deposition. The
Court is aware, however, that following the filing of the
instant Motion, depositions have been taken of certain
witnesses and Defendants associated with Patton State
Hospital.

The
Court is not convinced that additional depositions should be
authorized at this time over the objection of the Defendants.
Considering Rule 26(b)(1), there has been no showing of the
importance of the non-party witnesses in resolving issues nor
the extent to which the information that each may possess is
unique and non-cumulative. At this point, the Court cannot
say that the burden and expense of the additional depositions
outweighs any likely benefit.

Plaintiffs
also have provided no justification for not raising the issue
of the deposition limit earlier despite the repeated
opportunities to do so recounted above. The Court agrees with
Defendants that Plaintiffs should exhaust their allotted 10
depositions before seeking leave of Court to schedule ...

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